THE LANDFILL NEXT DOOR

Tennessee man believes Deep Creek Plantation should have told him about the closed and capped dump before he made a down payment on the property

KEVIN TURNER

Deep Creek Plantation, a rural Nassau County subdivision along the east bank of the St. Marys River, is geared toward nature lovers and horse owners, and offers land buyers an idyllic setting with a preserve-type environment, wooden bridges, access-controlled gates and large wooded lots.

No houses have been built in the 109-lot, 910-acre subdivision, but Nashville, Tenn.-area resident Herb Lewis once wanted one. He said he liked everything he heard about Deep Creek, tucked in the county's southwest section near the town of Bryceville. It was near his parents and allowed a place to keep horses, making it a sensible third home for the software developer, he said.

He paid a down payment of about $16,000 on two lots in June 2007.

What he found out after signing the contract, though, has him changing his mind: Deep Creek Plantation is located next to the Bryceville Landfill, a closed and capped Nassau County facility.

"I said, 'No way.' I didn't want to do this," he said. "If my subdivision has a landfill in it, and I sell it, I have to disclose that in good faith. Don't they have to do the same?"

Deep Creek Plantation straddles the Bryceville Landfill like a horseshoe. The nearby town of Bryceville dumped trash there in the 1970s and 1980s, and the facility was capped in 1993.

Lewis said he was concerned that he wouldn't be able to resell a home at Deep Creek because it was so close to the landfill - even though the old facility gets clean reports from its surrounding monitoring wells.

"I said, 'No, guys. You have a landfill.' I couldn't sell it if I wanted to," he said. Lewis reneged on the purchase and said Deep Creek Plantation Development Co. kept his down payment.

"Not telling potential buyers about a landfill is not good business," he wrote to Deep Creek Plantation salesman Larry Lanier and Fernandina Beach attorney Jim Shroads in an Aug. 13 e-mail. Shroads represents Deep Creek Plantation Development Co.

Lanier said last week he told Lewis about the landfill before he made his down payment - a comment Lewis disputes.

"I wouldn't have given him 16 grand if I knew about the landfill," Lewis said.

Lanier said he's been telling Deep Creek Plantation buyers - 24 have bought lots - about the landfill despite the fact Shroads says he doesn't have an obligation to do so.

Shroads said because the landfill is stable and because its location isn't a hidden fact, it's not something that has to be disclosed. In fact, Shroads wrote Lewis in a Nov. 27, 2007, letter that because Lewis has family in the area, he should have known about the landfill.

"There are certain things if you know you have to disclose if they pose an obvious risk," Shroads said. "I'm not aware of any obligation to say anything about a closed county landfill that has no effect on a lot."

Real estate attorney Matthew Breuer, of Jacksonville law firm Foley & Lardner, said under Florida case law, a seller of residential land has to tell a potential buyer about anything he or she knows of on or near the land that could materially affect its value and that the buyer couldn't easily find out about before the sale.

"I think to say there's no duty [to disclose the landfill] misses the mark," Breuer said. "The issues are certainly cloudy enough for there to be a question."

Robert Newman, who bought a lot at the northern end of the Deep Creek Plantation earlier this year, said Lanier didn't tell him about the Bryceville landfill, either.

Lanier said last week he wasn't certain whether he told Newman about the landfill.

Shroads said there are no health concerns when it comes to Deep Creek. The covenants require lot owners to drill wells deeply, below layers that could contain possible contaminant seepage, Shroads said.

"Yes, we know there's a landfill there. It's closed. We've got the county's environmental reports on monitoring. We know what it is, what it does. It doesn't do much. It's there, but it doesn't really matter."

Unlike Lewis, Newman said the presence of the landfill doesn't present a problem to him.

"I grew up in Oceanway. There's a huge landfill in Oceanway that's closed," he said. "In terms of concern, I'm numb, maybe. I don't associate it with any types of issues. If there are risks of issues, I'm sure authorities are taking the proper actions."

Deep Creek Plantation and Nassau County struck a deal in 2005, in which the developer gave the county a strip of land around the landfill, establishing a buffer between it and the development. In exchange, the county gave the developer an unused parcel of land to the north of the landfill, records indicate.

The land to the north became part of Deep Creek Plantation, Shroads said. He said he didn't remember the amount of acreage the developer received.

"The county got more land out of the deal than we did," he said Friday.

The commission voted in July 2006 to approve the construction of the subdivision. Nassau County Commissioner Marianne Marshall said the commission was satisfied that developers had done the work they needed to do by law to subdivide and sell the land.

"They had done their due diligence," she said. "They had run tests, from what we were told. That was discussed."

Today, the landfill is harder to find than it used to be.

The developer has constructed a locked gate across the former dirt road that once led to the landfill and has posted a "no trespassing" sign.

The remainder of the old road to the landfill is overgrown with weeds. About 700 feet from the gate, a county sign on a chain link fence identifies the closed landfill as such.

Shroads, like Newman, says he isn't bothered by the presence of the landfill. He owns a lot at Deep Creek Plantation also, he said.

"For the first time in my life, I bought a lot in a client's project," he said. "I'd love to retire there. I hope all the pieces come together for that because I do like the lot. That's my dream site. That's why I bought it."